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SCA/3739/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3739 of 2010
=========================================================
HAROON
YUSUFBHAI KADIWALA - Petitioner(s)
Versus
DIRECTOR
GENERAL OF POLICE & 1 - Respondent(s)
=========================================================
Appearance
:
MR
MUKIL SINHA for MR SUBRAMANIAM IYER
for
Petitioner(s) : 1,
MR NIRAG PATHAK AGP for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
Date
: 10/08/2010
ORAL ORDER
The
petitioner, who was working as an Unarmed Head Constable, at
Khatodara Police Station of Surat, has been transferred by order
dated 23.3.2010 to Sabarkantha District and is placed at the disposal
of Superintendent of Police, Sabarkantha, at Himmatnagar. Aggrieved
by the said order, the petitioner has approached this Court with this
petition making the following prayers :-
(A) That
the Hon’ble Court be pleased to issue a writ of mandamus or any other
appropriate writ or order declaring that the impugned order dated
23.3.2010 is illegal and ultra-vires to the powers of the authority
amounting to victimization, improper and violative of Articles 14 and
16 of the Constitution of India and further be pleased to
quash and set aside the same.
(B) Pending
admission and final disposal of this petition, the Hon’ble Court be
pleased to stay further operation of the impugned transfer order and
direct the authorities to re-transfer the petitioner in the original
place at Khatodara Police Station.
(C) Any
other relief deemed fit to meet the ends of justice may be granted.
2. The
petition is based on the ground that employee upto the level of
Constable cannot be transferred outside the District; that the
transfer is punitive action for legitimate association activities of
the petitioner; that the transfer order is passed in colourable
exercise of power; and that the transfer order would cause prejudice
to the petitioner’s interest and, therefore, the same may be quashed
and set aside.
3. Heard
learned advocate Mr Sinha for the petitioner and learned AGP Mr
Pathak for the respondent.
4. Learned
advocate Mr Sinha submitted that inter-district transfer of the
petitioner is used as a weapon to punish him for his association
activities, since the petitioner is a party to association activities
and writ petition. Mr Sinha submitted that ordinarily inter-district
transfers are not effected for Constables unless there are emergent
circumstances. He has drawn attention of this Court towards paras
152, 153, 154 and 155 of the Police Manual and submitted that the
orders are bad and may be quashed and set aside.
5. Learned
AGP Mr Pathak has opposed this petition, According to him, the orders
are passed by the Director General of Police, who is at the top of
the Police Department at State level and resolution dated 17.10.1979
permits such transfers. The transfer order is passed on
administrative grounds and, therefore, the petition may not be
entertained.
6. In
rejoinder, Mr Sinha submitted that if the order is passed on
administrative grounds, there is no question of any secrecy and the
cause may be made known to the petitioner to enable him to meet with
the same.
7. When
his attention was drawn to Section 28 of the Bombay Police Act, he
submitted that these powers are not to be employed in ordinary
course. This is done where a mass of police personnel is to be
shifted from one place to another for emergent circumstances.
8. Having
examined the case on hand in light of the rival submissions, it may
be noted that the petitioner is a Head Constable, who is sought to be
transferred from one district to another on administrative grounds.
The order impugned is signed by the Police Commissioner, Surat, but
is passed pursuant to an order passed by the Director General of
Police on 19.3.2010. The order makes it clear that the transfer is
effected on public interest.
9. The
grounds of challenge mainly are malafides, colourable exercise of
power, want of jurisdiction and that employee upto the level of
Constable cannot be transferred outside the district ordinarily. If
the order is seen, there is nothing to read that it is either
punitive or in colourable exercise of power and there may not be any
such indication in the order ordinarily.
9.1 So
far as the authority or jurisdiction part is concerned, much emphasis
is laid on the provisions contained in paragraph 152 of the Bombay
Police Manual, which provides that under Section 28(1) of the Bombay
Police Act, 1951, the Inspector General of Police is authorised to
make, whenever necessary, inter-district transfer of police
establishment without reference to the Government. It has, therefore,
been canvassed that inter-district transfer otherwise cannot be
effected except in exercise of powers under Section 28(1) of the
Bombay Police Act and that is to be exercised only in emergent
circumstances.
10. If
a reference is made to Section 28(1) of the Bombay Police Act, it
runs as under :-
28. Police
Officer to be deemed to be always on duty and to be liable to
employment in any part of the State. –
(1) Every
Police Officer not on leave or under suspension shall for all
purposes of this Act be deemed to be always on duty, and any Police
Officer or any number or body of Police Officers allocated for duty
in one part of the State may, if the State Government or the
Inspector-General so directs, at any time, be employed on Police duty
in any other part of the State may, if the State Government or the
Inspector-General so directs, at any time, be employed on Police duty
in any other Part of the State for so long as the services of the
same may be there required.
11. A
plain reading of this Section would make it clear that every Police
Officer who is not on leave or under suspension shall be deemed to
be on duty for all purposes, and any Police Officer or any
number or body of Police Officers allocated for duty in one part of
the State may, if the State Government or the Inspector-General so
directs, at any time, be employed on Police duty in any other part of
the State may, if the State Government or the Inspector-General so
directs, at any time, be employed on Police duty in any other Part of
the State for so long as the services of the same may be there
required.
12. An
affidavit-in-reply filed on behalf of respondent No.2 clearly denies
allegations of malafides etc.. It is also denied that the order is
punitive in nature.
13. It
may be noted that though malafides and prejudice are stated as
grounds for the petition, the allegations are too general in nature
and are not levelled against any individual person. Further the
resolutions do authorise Director General of Police to make
inter-district transfers of police personnel. This Court will not go
into the question of sufficiency of reasons for transferring a man in
public interest. That subjective satisfaction is to be arrived at by
the authority concerned. The powers under Section 28 of the Bombay
Police Act also do not envisage any restriction in exercise of those
powers and any police officer can be transferred. Term Police
officer under Section 2(11) of the B.P. Act is defined to mean any
member of the Police Force appointed or deemed to be appointed under
the Act, and would, therefore, include any police personnel including
a Head Constable, the rank to which the petitioner belongs.
14. This
Court, therefore, would not exercise its extraordinary discretionary
writ jurisdiction to interfere with the order of transfer passed in
respect of the petitioner.
15. The
petition, therefore, must fail and stands dismissed. Notice is
discharged.
(A.L.
DAVE, J.)
zgs/-
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